High court, 5th Circuit battling over death row

Cases can bounce back and forth as judges butt heads

PATTY REINERT, Copyright 2004 Houston Chronicle Washington Bureau

Published 6:30 am, Sunday, December 5, 2004

WASHINGTON - Eight of the nine U.S. Supreme Court justices decided last year that death row inmate Thomas Miller-El, a black man from Dallas, showed ample evidence that prosecutors deliberately excluded blacks from his 1986 jury.

The high court, annoyed that the 5th U.S. Circuit Court of Appeals in New Orleans had ignored the evidence, sent the case back with orders to take a second look. The lower court did. But it didn't change its mind.

So on Monday, in what has become a pattern of repeat trips to the Supreme Court for Texas death cases, lawyers for Miller-El will ask the justices to decide a different fundamental question: Is the 5th Circuit so blatantly disobedient that it must be reined in — again?

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Whether the New Orleans-based federal appeals court is scorning Supreme Court guidance or has a genuine philosophical disagreement, it's clear the lower court is butting heads with the high court, Houston lawyer and former Supreme Court clerk Brett Busby said.

"The majority of the Supreme Court seems to be increasingly trying to send them a message that the law is contrary to the way they are portraying it," he said.

The 5th Circuit is composed of 14 lifetime appointees of Republican presidents Reagan, George H.W. Bush and the George W. Bush and six appointees of Democratic presidents Clinton and Carter. It is widely considered one of the two most conservative circuit courts in the nation and is known for its reluctance to side with criminal defendants, death row inmates in particular.

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The Supreme Court has indicated the 5th Circuit has gone too far, denying defendants' constitutional rights. Although the high court accepts and decides only a tiny fraction of the cases that are filed each term, it nevertheless has taken three Texas death penalty cases at least twice. In each, the high court repeatedly has warned the 5th Circuit about failing to comply with its rulings.

Tennard's case

In the case of Robert Tennard, a Houston man who killed a neighbor, a six-justice majority of the Supreme Court heaped shame on the 5th Circuit in June. The court wrote that the 5th Circuit's test for deciding cases in which the defendant has a low IQ has "no foundation in the decisions of this court."

Last month, the court delivered the same message directly to the Texas Court of Criminal Appeals, which used the same test to deny the appeal of Dallas killer LaRoyce Smith without waiting for the high court's ruling in the Tennard case.

In Smith's case, the Supreme Court justices, without scheduling arguments, issued a 7-2 unsigned opinion urging the state court to pay attention and stop relying on "a test we never countenanced and now have unequivocally rejected."

The same day, the justices overturned, without comment, the death sentence of Ted Calvin Cole, also known as Jalil Abdul-Kabir. It returned his case to the 5th Circuit with instructions to reread the Tennard decision and reconsider Cole's appeal.

Penry's case

Even before Tennard's case, Texas death row inmate Johnny Paul Penry's case had been to the Supreme Court and back to the 5th Circuit several times because of what the high court saw as the lower court's faulty system of reviewing the evidence on defendants' low IQ and mental retardation.

Death penalty system

The high court has since accepted several other Texas death penalty appeals and has summarily thrown out lower-court decisions and sent the cases back for more work.

"What is really happening is the death penalty system in Texas is close to breaking, because the Supreme Court simply does not have the resources to police every single death penalty case that comes up from Texas," said David Dow, a professor at the University of Houston Law Center who represents death row inmates.

"They have to be able to count on the 5th Circuit and the Texas Court of Criminal Appeals to do their jobs," he added. "So far, they haven't been able to do that."

Texas Attorney General Greg Abbott, whose staff represents the state in death penalty appeals, declined through a spokesman to comment on the Miller-El case or on the conflict between the Supreme Court and lower appeals courts.

And, like most federal judges, those on the 5th Circuit do not discuss their decisions with the media.

But Rob Kepple, executive director of the Texas District and County Attorneys Association in Austin, defended the judges, saying Supreme Court decisions "are very good at telling you you did it wrong" but are "notoriously void of guidance on telling you how to do it right."

"It shouldn't be surprising to anybody that the courts are going to go back and forth as (they) try to guess what the Supreme Court wants them to do," he said.

Miller-El's case

In Miller-El's case, Jim Marcus of the Houston-based Texas Defender Service and former Solicitor General Seth Waxman of Washington complained in court briefs that despite "overwhelming evidence of racial discrimination" and "strong indications that the state courts mishandled that evidence," the 5th Circuit twice came to the identical conclusion against their client.

"It did so largely by ignoring this court's direction," the lawyers wrote, adding that the Supreme Court should send a clear message that this will not be tolerated.

Miller-El's evidence included the fact that prosecutors asked different questions of potential jurors based on their race, eliminated blacks who gave similar answers or had similar backgrounds as whites who were seated on the jury, and exercised their option to shuffle the seating order of the jury pool when the front seats were occupied by blacks.

Perhaps most damning, though, was evidence of a history of discrimination against minority potential jurors by the Dallas County District Attorney's Office. Miller-El's lawyers produced the office's training manuals on jury selection that in the 1960s read: "Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated." Later versions advised avoiding such jurors because "minorities usually empathize with the accused."

Prosecutors in Miller-El's case used their jury pool strikes to eliminate 10 of the 11 blacks. The jury that convicted Miller-El and sent him to death row for the 1985 shooting murder of Irving Holiday Inn clerk Doug Walker included an African-American, a Hispanic and an Asian-American. The nine other jurors were white.

Supreme Court Justice Anthony Kennedy, writing for the majority last year, said Miller-El's evidence revealed a culture in the district attorney's office that was "suffused with bias against African-Americans in jury selection."

The lone dissenter

The 5th Circuit said it was merely deferring to the state trial court's decision that Miller-El had not proved the bias. But Kennedy wrote that showing deference "does not imply abandonment or abdication of judicial review." His opinion laid out in detail the evidence the justices found to be obvious.

Rather than following the majority's opinion, however, the 5th Circuit relied on the reasoning of Justice Clarence Thomas, the high court's only black member, who was the lone dissenter in the case. It lifted several passages from his opinion, without attributing the wording to him, in its latest decision in the case.

Texas Assistant Attorney General Gena Bunn wrote in her brief to the Supreme Court that the 5th Circuit did follow the high court's lead in re-evaluating that evidence. It simply came to the same conclusion as before, that Miller-El failed to show that prosecutors struck the black potential jurors because of their race rather than their views, she said.